Delhi District Court
State vs . 1. Fahimuddin S/O Safiquddin on 25 August, 2011
IN THE COURT OF SH. RAMESH KUMAR - II, LD. ADDITIONAL
SESSIONS JUDGE - 0I : North East / KARKARDOOMA COURTS:
DELHI.
Case ID Number. 02402R0426072008
Sessions Case No. 112/2008
Assigned to Sessions. 11.09.2008
Arguments heard on 18.08.2011
Date of order. 25.08.2011
FIR No. 481/2007
State Vs. 1. Fahimuddin s/o Safiquddin
2. Kanwar Sultana w/o Safiquddin
3. Nilofar d/o Safiquddin
All r/o House No.11, Gali No.3,
New Kardam Pur, Delhi.
Police Station Shahdara
Under Section 498A/306/34 IPC
JUDGEMENT
1. Vide this judgment I shall dispose off the present case in which Station House Officer of Police Station Shahdara had filed a challan vide FIR No. 481/2007 dated 07.11.2007, u/s 498A/306/34 IPC for the prosecution of accused persons namely Fahimuddin, Kanwar Sultana and Nilofar in the court of Ld. MM as deceased was married with accused Fahimuddin on 12.03.2006 and her death had taken place within seven years of her marriage. Accordingly, Ld. Metropolitan Magistrate after compliance of SC No.112/2008 State Vs. Fahimuddin and others 1/24 section 207 Cr. P.C. committed this case for trial before this court.
2. Facts of prosecution case are that on 11.10.2007 a DD No.5A mark 'X' was recorded at police station Shahdara regarding admission of injured Sazia in burnt condition in GTB Hospital by her husband. This DD was marked to SI Om Prakash for investigation. On receipt of this DD, SI Om Prakash along with Ct. Raghuveer Singh reached at GTB Hospital and collected MLC of injured Sazia Ex.PW14/A. Since the period of marriage was less than seven years, hence, SDM of the area was informed by IO. SDM reached at GTB Hospital and recorded statement of injured Sazia Ex.PW3/A.
3. On 29.10.2007 DD No.20A mark X1 regarding death of Sazia was recorded and same DD was assigned to SI Om Prakash for investigation. SDM of the area was informed by Investigating Officer and Sh. Y.P. Singh, Executive Magistrate reached at mortuary of GTB Hospital and recorded statement of Mohd. Asif Ex.PW2/A, brother of deceased and after recording said statement, he directed SHO Shahdara to take necessary action as per law. SDM conducted inquest proceedings vide Ex.PW12/C i.e. request for postmortem, filled up form 25.35 Ex.PW12/A and recorded statement of Mohd. Asif and Israr the family members of deceased regarding identification of dead body of deceased vide Ex.PW12/A and PW12/B. After postmortem the dead body of Sazia was handed over to the relatives of deceased. IO had seized one kerosene stove Ex.P8, one plastic bottle Ex. SC No.112/2008
State Vs. Fahimuddin and others 2/24 P9, match box with three burn sticks and nineteen unburnt sticks Ex.P10 vide seizure memo Ex.PW3/B. On the basis of statement of Mohd. Asif Ex.PW2/A, FIR No.481/2007 u/s 498A/306/34 IPC Ex.PW15/B was recorded at police station Shahdara. Accordingly, accused persons were arrested for the offences u/s 498A/ 306/ 34 IPC.
4. On the basis of material available on record ld. predecessor of this court framed a charges vide order dated 22.01.2009 against accused persons namely Fahimuddin, Kanwar Sultana and Nilofar for the offences punishable u/s 498A/306/34 IPC to which accused persons did not plead guilty and claimed trial.
5. In order to prove its case prosecution has examined 15 witnesses namely PW1 W/Ct. Anita, PW2 Md. Asif - Complainant/hostile witness, PW3 SI Om Prakash - Investigating Officer, PW4 Mohd. Israr Khan - elder brother of deceased/hostile witness, PW5 Ct. Kunwar Pal Singh, PW6 SI Sumer Singh, PW7 Inspector Tarun Kumar Sharma, PW8 Ct. Vinod Kumar, PW9 Sadma - hostile witness, PW10 Dr. Raghvendra Bagla, PW11 HC Raghubir Singh, PW12 Yogesh Pal Singh - Executive Magistrate, PW13 W/ASI Rakesh Kumari - formal witness, PW14 Dr. Devender Kumar and PW15 HC Chandervir Singh.
SC No.112/2008
State Vs. Fahimuddin and others 3/24
6. PW1 W/Ct. Anita. This is the witness of arrest of accused persons namely Nilofar and Smt. Kanwar Sultana vide arrest memo Ex.PW1/A and Ex.PW1/B from House No.117, Gali No.3, New Kardampuri, Delhi. This witness has also proved the personal search memo of accused persons namely Nilofar and Smt. Kanwar Sultana vide Ex.PW1/C and PW1/D.
7. PW2 Md. Asif is a material witness being complainant/elder brother of deceased. This witness has been declared hostile by Ld. APP for the State. Even in his cross examination by ld. APP for the State this witness did not support to the case of prosecution. In his cross examination by Ld. APP for the State, this witness has admitted that his daughter did not make any allegation against her inlaws in her statement made before the SDM. This witness has denied that his sister had committed suicide due to torture of her inlaws including her husband, Nanad and motherinlaw.
8. PW3 SI Om Prakash is a material witness being I.O. This witness deposed that on 11.10.2007 on receipt of DD No.5A mark 'X' he along with Ct. Raghuveer Singh reached at GTB Hospital and collected MLC of injured Sazia and recorded statement of injured Sazia which is not on judicial file. This witness had called Executive Magistrate, Y.P. Singh at hospital who recorded statement of Sazia Ex.PW3/A in his presence. This witness had called Crime Team officials at the spot i.e. House No.117, Gali No.3, Kardampuri who took the photographs of the scene of occurrence. This SC No.112/2008 State Vs. Fahimuddin and others 4/24 witness has proved the same photographs Ex.P1 to P6. This witness had seized plastic bottle, match box and burn sticks vide seizure memo Ex.PW3/B.
9. On 29.10.2007 vide DD No.30A mark 'X1' this witness had received information that Sazia had died in the hospital. Thereafter, this witness had informed Executive Magistrate, Y.P. Singh who came in the mortuary of GTB Hospital on 30.10.2007 and prepared inquest papers. This witness had seized the sealed envelope containing some hairs of deceased vide seizure memo Ex.PW3/C which was handed over to him by the the doctor after the postmortem of deceased.
10.This witness has proved his endorsement vide Ex.PW3/D on the statement of Md. Asif. This witness has proved arrest memo of accused persons namely Fahimuddin, Kanwar Sultana and Nilofar vide Ex.PW3/E, PW1/B and PW1/A respectively. This witness has also proved personal search memo of accused persons vide Ex.PW3/E1, PW1/D and PW1/C respectively. This witness has also proved site plan Ex.PW3/F.
11.On 08.11.2007 the brother of deceased hand over Nikhanama of deceased Sazia with accused Fahimuddin which this witness had seized vide seizure memo Ex.PW2/B. This witness has identified Nikahnama of deceased with accused Fahimuddin as Ex.P7. This witness has correctly identified the case SC No.112/2008 State Vs. Fahimuddin and others 5/24 property which were recovered by him.
12.PW4 Mohd. Israr is the elder brother of deceased Sazia. This witness has been declared hostile by Ld. APP for the State. This witness has deposed that his deceased sister Sazia died due to burn injuries in the GTB Hospital and he does not know how she die due to fire.
13.PW5 Ct. Kunwar Pal Singh. This is the witness who accompanied I.O. SI Om Prakash to mortuary of GTB Hospital for getting conducted postmortem of deceased Shajia. This is the witness of seizure memo Ex.PW3/C of sealed pullanda containing the hair of deceased which were handed over to I.O. after postmortem.
14.PW6 SI Sumer Singh. This is the witness of registration of DD and he has proved DD No.5A vide Ex.PW6/A.
15.PW7 Inspector Tarun Kumar Sharma. This is the witness of taking the photographs of scene of crime. This witness has taken photographs of the place of occurrence at the instance of I.O. and he has proved the same vide Ex. P1 to P6. This witness has also proved the negatives of those photographs Ex.P7 to P12.
16.PW8 Ct. Vinod Kumar. This is the witness of arrest of accused persons SC No.112/2008 State Vs. Fahimuddin and others 6/24 namely Nilofar, Kanwar Sultana and Fahimuddin at the instance of Md. Asif. This witness has proved arrest memo of accused Fahimuddin Ex.PW3/E and personal search memo Ex.PW3/E1.
17.PW9 Sadma, sister of deceased. This witness has also been got declared hostile by Ld. APP for the State. Even in her cross examination by Ld. APP for the State this witness has not supported the case of prosecution.
18.PW10 Dr. Raghvendra Bagla. This witness had conducted postmortem on the dead body of Smt. Shajia aged 25 years. This witness has proved detailed postmortem report Ex.PW10/A. The cause of death was septicemic shock due to antemortem infected flame burns involving 98% of total body surface area.
19.PW11 HC Raghubir Singh. This witness has accompanied IO during the course of investigation. This witness has proved the seizure memo Ex.PW3/B. This witness has identified on plastic bottle Ex.P9 and one match box of make 'patang' Ex.P10.
20.PW12 Sh. Yogesh Pal Singh. This witness has deposed that on 11.10.2007 he was working as Executive Magistrate, Seemapuri, Shahdara, Delhi. This witness has proved statement Ex.PW3/A of injured Sazia wife of Fahim which was recorded by him and thumb impression of injured Sazia mark 'X' SC No.112/2008 State Vs. Fahimuddin and others 7/24 were obtained upon the same.
21.On 30.10.2007, this witness was informed about the death of Sazia by police and he reached at mortuary of GTB Hospital and recorded statement of Mohd. Asif Ex.PW2/A and made endorsement to take action as per the law at point Y, which bears my signature at point Y1. This witness had handed over the statement of PW Md. Asif to Investigating Officer. This witness has proved inquest form Ex.PW12/A and statement of PW Mohd. Asif Ex.PW2/A and PW Israr Ex.PW12/B. This witness has proved request for postmortem Ex.PW12/C. In his cross examination, this witness has deposed that Sazia had given statement to him and he had recorded her statement Ex.PW3/A in his own handwriting.
22.PW13, W/ASI Rakesh Kumari. This is the witness of recording DD No.20A which this witness has proved vide Ex.PW13/A.
23.PW14, Dr. Devender Kumar. This is the witness of MLC of Sazia prepared by Dr. Murtza A. Khan and this witness has proved the MLC of Sazia Ex.PW14/A on behalf of Dr. Murtza A. Khan.
24.PW15, HC Chandervir Singh. This is the witness of recording of FIR. This witness has proved FIR Ex.PW15/B which was recorded on the basis of rukka Ex.PW15/A. In his cross examination by Ld. Defence counsel, this SC No.112/2008 State Vs. Fahimuddin and others 8/24 witness has denied that FIR is antedated and antetime.
25.After prosecution evidence, statement of accused persons u/s 313 Cr.P.C. was recorded, all the accused persons denied all the allegations and evidences put to them. They had deposed that deceased had been admitted in the hospital on account of burn injury sustained accidentally and she had given only one statement to SDM in which she had stated that she had sustained injuries accidentally. They had further deposed that she did not disclose anything against anyone during her treatment in the hospital. After that accused persons had offered to lead defence witnesses and examined DW1 Mohd. Wasim and DW2 Sh. Shakeel Ahmad.
26.DW1 Mohd. Wasim during his examination has deposed that it was informed by Shafiqudin that Smt. Sazia had sustained injury while filling kerosene oil into stove. This witness has further deposed that he met with the deceased in the hospital where she told him that she had sustained burn injuries accidentally.
27.DW2 Sh. Shakeel Ahmad, this witness has deposed that accused Fahimuddin and his family are known to him being his neighbour. This witness has further deposed that accused persons used to treat Sazia (deceased) properly and he had not noticed any quarrel between Sazia and her inlaws during her lifetime. This witness has further deposed that on the SC No.112/2008 State Vs. Fahimuddin and others 9/24 day of incident at about 8:00 a.m. he had seen accused Fahimuddin taking his wife with burn injuries to hospital and it came into his notice that deceased Sazia had sustained injuries accidentally while cooking on stove.
28.After recording of defence evidence, D.E. was closed and case was fixed for final arguments.
ARGUMENTS:
29.Ld. APP for state, Sh. Zenual Abedeen argued that it is a dowry death case and charges under section 498A/306/34 IPC were framed against accused persons namely Fahimuddin, Smt. Kanwar Sultana and Neelofar. Deceased Sazia was married in the month of March'2006 with accused Fahimuddin and date of death of deceased is .29.10.2007. On the statement of PW2 Md. Asif present case was registered under section 498A/3064B IPC against accused persons namely Fahimuddin, Smt. Kanwar Sultana and Neelofar. Ld. APP for the State further argued that material witnesses PW2, PW4 and PW9 have been won over but there are other material available on record to hold accused persons guilty. Ld. APP for State argued and submitted that a serious view be taken against hostile witnesses since, they had given other versions before the court which they had given before SDM and police.
30.Ld. APP for the State further argued that deceased remained in the hospital SC No.112/2008 State Vs. Fahimuddin and others 10/24 for about 17 days and there is no dying declaration of deceased on record. PW1 Anita is the witness of arrest of female. PW12 SDM had recorded the statement of complainant on which present case was registered. PW3 SI Om Prakash is the Investigating Officer of this case. PW10 Dr. Raghuvendra Bhagla had conducted postmortem of dead body of deceased. PW14 Dr. Devender had proved the MLC of deceased. PW15 Chanderveer Singh is the duty officer. Ld. APP for state further argued that circumstance of death of deceased under suspicion as accused had been habitual drunker and due to this habit deceased was not happy and due to demand of dowry deceased was forced to commit suicide by the accused. Ld. APP for the State further argued that statement of PW Mohd. Asif dated 11.10.2007 is corroborated with statement of SDM PW12.
31.Ld. APP further states that there is sufficient material on record to convict the accused under section 498A/306/34 IPC.
32.On the other hand, Ld. counsel for the accused persons argued and submitted that deceased was admitted in the hospital by the family members of accused and if there was any demand of dowry there is no complaint to this effect neither any of the witnesses has stated this fact in their deposition. Ld. Counsel further states that no circumstances has been shown by the prosecution alleging conduct of accused or his any of family members regarding demand of dowry or harassment or torture of deceased. SC No.112/2008
State Vs. Fahimuddin and others 11/24
33.Ld. counsel for the accused persons further argued and submitted that all the material witnesses have turned hostile and they did not support the prosecution case on any count and other witnesses are formal in nature. Ld. Counsel for accused persons further argued that there is dying declaration on record. Ld. counsel for accused persons further argued that there is no complaint against accused husband and there is no facts of soon before death. Ld. Counsel for accused persons further argued that deceased alive for 17 days and thereafter she had been died i.e. On 29.10.2007 and she had made her dying declaration on 11.10.2007.
34.Ld. counsel for accused persons has relied upon the following citations :
1. Karam Pal Singh Vs. The State of Punjab 2010(1) C.C. Cases (HC) 372;
2. State of Haryana Vs. Ram Singh, 2002 (1) JCC 385;
3. Jaspal Singh and others Vs. State of Punjab, 2011 (1) C.C. Cases (HC) 343;
4. Munish Chawla and others Vs. State of Haryana, 2011 (1) C.C. Cases (HC) 360.
35.On these grounds, ld. counsel for accused persons has prayed for acquittal of accused persons.
SC No.112/2008
State Vs. Fahimuddin and others 12/24
36.Arguments heard. Record perused. On perusal of record it is revealed that a DD No.5A was recorded at Police Station Shahdara that one lady has been admitted by her husband in GTB Hospital in burnt condition. On receipt of this DD, SI Om Prakash along with HC Raghuveer Singh reached at GTB Hospital and collected MLC of injured Sazia Ex.PW14/A. Since the period of marriage was less than seven years, SDM of the area was informed by IO. SDM reached at GTB Hospital and recorded statement of injured Sazia Ex.PW3/A.
37.On perusal of record, it is further revealed that on 29.10.2007 DD No.20A mark X1 regarding death of Sazia was recorded and same DD was assigned to SI Om Prakash for investigation. SDM of the area was informed by Investigating Officer and Sh. Y.P. Singh, Executive Magistrate reached at mortuary of GTB Hospital and recorded statement of Mohd. Asif Ex.PW2/A and after recording said statement, he directed SHO Shahdara to take necessary action as per law.
38.On perusal of record, it is further revealed that SDM conducted inquest proceedings vide Ex.PW12/C i.e. request for postmortem, filled up form 25.35 Ex.PW12/A and recorded statement of Mohd. Asif and Israr, brothers of deceased regarding identification of dead body of deceased Sazia vide Ex.PW12/A and PW12/B respectively and after postmortem the dead body was handed over to the relatives of deceased for cremation. SC No.112/2008
State Vs. Fahimuddin and others 13/24
39.On perusal, it is further revealed that on the basis of statement of Mohd. Asif Ex.PW2/A, FIR No.481/2007 u/s 498A/306/34 IPC Ex.PW15/B was recorded at police station Shahdara and accordingly, accused persons were arrested u/s 498A/ 306/ 34 IPC.
40.On perusal of record, it is further revealed that accused persons namely Fahimuddin, Kanwar Sultana and Nilofar were arrested vide arrest memo Ex.PW3/E, PW1/B and PW1/A respectively and their personal search memos were prepared vide Ex.PW3/E1, PW1/D and PW1/C respectively.
41.On perusal of record, it is further revealed that IO had seized one kerosene stove Ex.P8, one plastic bottle Ex. P9, match box with three burn sticks and nineteen unburnt sticks Ex.P10 vide seizure memo Ex.PW3/B.
42.On further perusal of record, it is revealed that there is no complaint made to any authority including police by PW2 Md. Asif, PW4 Israr and PW9 Sadma (brothers and sister of deceased) regarding harassment of deceased Sazia on point of demand dowry till her life time. Further on perusal of record it is revealed that PW2 in his cross examination denied that his sister had committed suicide due to torture of her inlaws including her husband, Nanad and motherinlaws on account of demand of dowry. PW2 further admits that deceased was admitted in the hospital by accused Fahimuddin, SC No.112/2008 State Vs. Fahimuddin and others 14/24 husband of deceased.
43.Further, it is revealed that statement of PW2 Md. Asif Ex.PW2/A and mark 'X' dated 07.11.2007 were confronted by Ld. APP for the State. This witness had denied all the suggestions put by Ld. APP for the State and even in his cross examination this witness has not supported the case of prosecution.
44.On perusal of record, it is further revealed that PW4 Israr has been got declared hostile by ld. APP for the State and his statement mark 'Y' dated 07.11.2007 u/s 161 Cr.P.C was confronted by Ld. APP for the State. This witness had also denied all the suggestions put by Ld. APP for the State and even in his cross examination this witness has not supported the case of prosecution.
45.On perusal of record, it is further revealed that PW9 Sadma, sister of deceased has also been got declared hostile by Ld. APP for the State and her statement mark Z dated 07.11.2007 u/s 161 Cr.P.C. Was confronted by Ld. APP for the State. This witness had also denied all the suggestion put by Ld. APP for the State and even in her cross examination this witness has not supported the case of prosecution.
SC No.112/2008
State Vs. Fahimuddin and others 15/24
46.On perusal of record, it is revealed that Investigating Officer had prepared site plan Ex.PW3/F of the place of incident at the instance of Asif, brother of deceased.
47.On perusal of record, it is further revealed that Investigating Officer had seized Nikahnama Ex.P1 of deceased Sazia vide seizure memo Ex.PW2/B.
48.On further perusal, it is revealed that there is statement/dying declaration of deceased Ex.PW3/A recorded by SDM wherein she had stated that she caught fire while she was filling kerosene oil into stove and nobody is responsible for this incident. It is also stated in the dying declaration that she was living happily in his matrimonial home and she had not any complaint against her in laws.
49.On perusal of record, it is further revealed that at the time of recording dying declaration Ex.PW3/A, injured Sazia was fit for statement as per MLC Ex.PW14/A which was recorded at the difference of five minutes after preparation of MLC of injured Sazia.
50.On further perusal of record, it is revealed that PW14 Dr. Devender Kumar on behalf of Dr. Murtza A. Khan has proved MLC of Sazia Ex.PW14/A.
51.On further perusal of record it is revealed that PW10 Dr. Raghvendra Bagla SC No.112/2008 State Vs. Fahimuddin and others 16/24 had conducted postmortem of dead body of deceased Sazia and he had proved postmortem report Ex.PW10/A and opined that cause of death was septicemic shock due to antemortem infected flame burns involving 98% of total body surface area.
52.On further perusal of record, it is revealed that DW1 Mohd. Wasim has deposed that he had met deceased Sazia in the hospital where she had told him that she had sustained burn injuries accidentally and DW2 Shakeel Ahmad has deposed that on the day of incident at about 8:00 a.m. he had seen accused Fahimuddin taking his wife with burn injuries to hospital and it came into his notice that deceased Sazia had sustained injuries accidentally while cooking on stove.
53.On further perusal of record, it is revealed that facts of citations filed by ld. counsel for accused persons are not disputed but same are not applicable to the present case.
54.Consequences of cruelty which are likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health, whether mental or physical of the woman is required to be established in order to bring home the application of Section 498A IPC. Cruelty has been defined in the Explanation for the purpose of Section 498A. Substantive Section 498A IPC and presumptive Section 113A of the Evidence Act have been SC No.112/2008 State Vs. Fahimuddin and others 17/24 inserted in the respective statutes by Criminal Law (Second Amendment) Act, 1983. The Explanation to Section 498A gives the meaning of `cruelty' but no such period is mentioned in Section 498A. "13. Section 2 of the Dowry Prohibition Act, 1961 (in short `Dowry Act') defines "dowry" as under : Section 2. Definition of `dowry' In this Act, `dowry' means any property or valuable security given or agreed to be given either directly or indirectly
(a) by one party to a marriage to the other party to the marriage; or
(b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before or any time after the marriage in connection with the marriage of the said parties, but does not include dower or mehr in the case of persons to whom the Muslim personal law (Shariat) applies.
Explanation I For the removal of doubts, it is hereby declared that any presents made at the time of a marriage to either party to the marriage in the form of cash, ornaments, clothes or other articles, shall not be deemed to be dowry within the meaning of this section, unless they are made as consideration for the marriage of the said parties.
Explanation II The expression `valuable security' has the same meaning in Section 30 of the Indian Penal Code (45 of 1860)."
Hon'ble Supreme Court in case titled as "Munnu Raja and another Vs. State of M.P.", wherein it has held that :
"Where after making the statement before the police, the victim succumbs to his injuries the statement can be treated as a dying declaration and is admissible under Section 32 (1) of the Act."SC No.112/2008
State Vs. Fahimuddin and others 18/24 Hon'ble Supreme Court in case titled as "Machhi Singh and others Vs. State of Punjab, AIR 1983 957 (1)", wherein it has held that :
"Where the dying declaration was not recorded by the magistrate but was faithfully recorded by the police, the evidence showed that the declarant was in fit condition to make the statement, the dying declaration was believed."
In order to bring home conviction under section 498A & 306 IPC it will not be sufficient to only lead evidence showing that cruelty and harassment had been meted out to the victim,but that such treatment was in connection with demand of dowry.
306. Abetment of suicide. If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
498A. Husband or relative of husband of a woman subjecting her to cruelty. Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation. For the purposes of this section, 'cruelty' means
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security SC No.112/2008 State Vs. Fahimuddin and others 19/24 or is on account of failure by her or any person related to her to meet demand.
Before reaching at any conclusion reference of Section 113 A of the Evidence Act is also relevant for the case in hand. Section 113 A which reads as follows : "113 A : Presumption as to abetment of suicide by a married woman When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years fromt he date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.
Explanation For the purposes of this section `cruelty' shall have the same meaning as in Section 498A of the Indian Penal Code (45 of 1860)."
55.After arguments and careful perusal of record, observations, preceding discussions and testimonies, it is clear that case was registered on the statement of PW Mohd. Asif. Further the statement of deceased is corroborated with medical evidence with the fact that she had caught fire while she was filling the kerosene oil in the stove. It is relevant to mention here the dying declaration of deceased Ex.PW3/A wherein she had stated that she had caught fire while she was filling kerosene oil in the stove and no one is responsible for this and she does not want any legal action against any one. This document was recorded by Executive Magistrate during the SC No.112/2008 State Vs. Fahimuddin and others 20/24 course of investigation. Since dying declaration is very material document in such cases but same has not been disclosed by IO.
56.It is also relevant to note that statement of deceased was recorded by SDM in the in the presence of Dr. Raghvendra Bagla in emergency ward of GTB Hospital. In view of the matter any possibility for making any tutored statement is ruled out as there was no person other than Dr. and SDM at the hospital.
57.Under Sub section (1) of section 32 of the Evidence Act, any statement, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, would constitute relevant facts as a result thereof, the Court is satisfied that the statement made by deceased is admissible.
58.Since dying declaration is material document for the purpose of present case. Hon'ble Supreme Court in case "AIR 1958 SC22: 1958 Cr LJ 106"
had laid down following tests for truthfulness of dying declaration :
Dying declaration - truthfulness - tests: (1) Declaration to a Magistrate preferable to oral testimony; (2) opportunity of dying man for observation; (3) capacity to remember remained unimpaired; SC No.112/2008
State Vs. Fahimuddin and others 21/24 (4)statement consistent throughout if several opportunities of declaration he had;
(5) early statement;
(6) no tutoring.
59.In the light of the above tests, the acceptability of the alleged dying declaration in the instant case has to be considered. The dying declaration is only piece of untested evidence and must, like any other evidence, satisfied the court that what is stated therein is unalloyed truth and that is absolutely safe to act upon it even no fact of any complaint to any authority regarding demand of dowry or cruelty by accused persons have been brought on record by prosecution.
60.Hon'ble Supreme Court in case "Sakatar Singh and Others Vs. State of Haryana, 2004 J.T. 147 wherein it has held that :
"Prosecution must prove that the victim was subjected to cruelty and harassment which fall under explanation to Sec. 498A IPC."
61.As in the present case, there is no existence of proximate and livelink between the fact of cruelty based on dowry demand and concerned death. Further there is no material to show that dying declaration was result or product of imagination, tutoring or prompting. On the contrary same appear to have been made by the deceased voluntarily. It is trustworthy and had credibility wherein deceased did not name any person responsible for her SC No.112/2008 State Vs. Fahimuddin and others 22/24 death. Even, no circumstances have been proved by the prosecution connecting the accused with demand of dowry from deceased. Since in the present case ingredients of section 498A IPC have not been fulfilled. Accordingly, case of prosecution does not inspire the confidence of this court and failed to prove the guilt of accused beyond reasonable doubt. On the basis of dying declaration which does not support the case of prosecution no conviction can be awarded.
62.Hon'ble Supreme Court in "Chanchal Kumar v. State AIR 1986 Supreme Court 752" wherein it has held that :
"When there is no direct evidence in regard to actual abetment by any of the accused and when circumstances revealed that the victim (wife) wrote a love letter tot he accused husband the charge under section 306 IPC cannot be held to have been proved. Suspicion, however strong, cannot take the place of proof."
63.After taking into consideration, all above discussion, this court is satisfied that dying declaration of deceased is true and free from any effort to enduce the deceased to make false statement.
64.Since ingredients of section 498A IPC regarding cruelty either by husband or by his relatives have not been met out and in reference to section 306 IPC no evidence forthcoming to show that husband or his relative either aided or instigated the deceased to commit suicide. After perusing the dying SC No.112/2008 State Vs. Fahimuddin and others 23/24 declaration of deceased no direct evidence could come on record against accused persons revealing involvement of accused persons for abating to commit suicide by deceased. Since public prosecution witnesses have been declared hostile and none of these PWs have supported the case of prosecution. Even in their cross examination by ld. APP for the State no one could deposed against accused persons. Accordingly, charges of section 306/34 IPC cannot be said to be proved. Hence, in the absence of sufficient evidence against the accused persons, this court acquit accused persons namely Fahimuddin, Smt. Kanwar Sultana and Nilofar from the charges u/s 498A/306/34 IPC by giving them benefit of doubt. In terms of Section 437 (A) Cr. P.C. accused persons are directed to execute bail bond in sum of Rs.20,000/ each with one surety in the like amount for the period of six months. Order accordingly, file be consigned to record room. ANNOUNCED IN THE OPEN COURT ON THIS 25.08.2011 (RAMESH KUMARII) ADDL. SESSIONS JUDGE01/NORTH EAST KARKARDOOMA COURTS: DELHI SC No.112/2008 State Vs. Fahimuddin and others 24/24 SC No.112/2008 State Vs. Fahimuddin and others 25/24